Supreme Court Strips FDA Youth Tobacco Regs

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In a 5-4 ruling last month the Supreme Court dismantled the Clinton administration's tough teenage anti-smoking campaign by stripping away the U.S. Food and Drug Administration's power to regulate tobacco.

"This is a great disservice to public health," said Judy Knapp, director of the St. Paul-based Minnesota Smoke-Free Coalition. "Tobacco is a drug, and the FDA has the power to regulate other drugs. Why not tobacco?"

The immediate effect of the ruling will be elimination of federal penalties on retailers who sell to those under 18 and the scrapping of the federal requirement that retailers check the photo identifications of buyers who look younger than 27. Other FDA regulations overturned by the ruling:

      *Cigarette-vending machines were barred in any public place where children or teenagers were permitted.

      *Billboards advertising tobacco were not allowed near schools and playgrounds, and those in other locations could use only text messages (no picture glamorizations) in black-and-white.

      *Tobacco ads in "a publication children and teenagers are likely to read" had to be in black-and-white with no illustrations.

      *Cigarette brand names were sharply restricted on "gear" such as caps, T-shirts and gym bags.

      *Brand-name sponsorship of sporting events was banned.

But tobacco manufacturers and retailers will not be free of policing, because many of these regulations overlapped or reinforced similar restrictions previously enacted individually by states, or adopted in the massive 1998 lawsuit settlement between 46 states and the nation's biggest tobacco companies. The settlement restrains the tobacco companies in the areas of youth access, marketing (like brand names on caps) and outdoor advertising (like billboards).

The recent ruling stems from a 1997 ruling by the Federal District Court in Greensboro, N.C., which upheld the FDA's jurisdiction over controlling children's access to cigarettes, but struck down the regulations' restrictions on advertising and promotion. Cigarette manufacturers appealed to the United States Court of Appeals for the Fourth Circuit (in Richmond, Va.), and won a 1998 ruling that nullified FDA's tobacco efforts. That is the ruling that the Supreme Court upheld last month.

Since 1997, the FDA has spent about $34 million annually on contracts with states to help monitor compliance with state laws barring sales to those under 18. One of the major motivations for the agency's emphasis on youth were studies that found if people do not begin smoking by age 21, they are unlikely to ever start. After the Supreme Court ruling, the agency sent letters to the states announcing an "orderly shutdown" of its compliance program.

States, of course, can continue their own compliance checks, but it is unclear how the loss of federal funds and cooperation will affect them.

"Minnesota already has compliance checks and carding of youngsters," Knapp said. "The big loss here is what FDA could have done with its power to regulate beyond the small steps it had already taken."

The court's majority, led by Justice Sandra Day O'Connor, said the FDA overreached in 1996 when it decided that nicotine in tobacco was a drug the agency was entitled to regulate.

O'Connor noted in her opinion that an "administrative agency's power to regulate must always be grounded in a valid grant of authority from Congress." The court majority said Congress never intended for the FDA to regulate tobacco.

While some anti-tobacco activists called on Congress to give the FDA such authority, that seemed unlikely. Following the ruling, Senate Majority Leader Trent Lott (R-Miss.) told reporters, "I think FDA has a very broad jurisdiction as it is, and I don't think they do a very good job of what they're supposed to be doing now without more requirements being dumped on them."

House Majority Leader Dick Armey (R-Tex.) was more blunt: "I'm not anxious to extend the power and authority of FDA."

While presidential candidates Al Gore and George W. Bush both spurred Congress to enact stricter controls on tobacco accessability to minors, only Gore called for the return of FDA's power to regulate nicotine.

In a statement issued immediately after the ruling, Matthew Myers, president of the D.C.-based Campaign for Tobacco-Free Kids, said, "Unless Congress acts, Big Tobacco will once again be an unregulated industry that is free to manufacture its products without regard for public health and safety - and to market these deadly and addictive products to our children."